SINGER-SWAPP FAMILY WINS SENTENCING SUIT

Utah's federal court Monday unanimously struck down new federal sentencing guidelines as unconstitutional, handing an important legal victory to the Singer-Swapp family.

Lawyers for Addam Swapp, Vickie Singer, John Timothy Singer and Jonathan Swapp - convicted in the standoff and fatal shooting at Marion, Summit County, in January - had challenged the guidelines.G. Fred Metos, lawyer for John Timothy Singer, mounted the attack on the guidelines, which is similar to attacks launched in other parts of the country. According to the Utah decision, more than 50 federal courts have ruled on the question so far, "with the cases running more than two-to-one against the constitutionality of the act."

Intended to eliminate disparity in sentencing, the guidelines actually perpetrate some unwise sentences, the judges ruled. They do not allow for the kind of evaluations of individual cases that judges should make.

In an obvious reference to Vickie Singer, the decision says: "To the extent that the guidelines treat the poor, deeply religious grandmother from Marion, Utah, who has young children at home to support, the same as the successful, hardened mafioso from the Bronx, we believe the guidelines err."

The guidelines were passed by Congress in 1984 but went into effect late last year.

They provide that points are given for such things as the nature of the offense, type or lack of prior record and severity of the crime. Defense lawyers claim the points reduce a judge's flexibility.

The Utah federal court has now agreed with that position.

U.S. District Chief Judge Bruce S. Jenkins wrote the opinion for the unanimous panel of five judges, holding that the Sentencing Reform Act of 1984 "is unconstitutional because it violates the separation and allocation of governmental powers mandated by the United States Constitution. . . ."

Under the act, a United States Sentencing Commission was set up as an independent commission in the Judicial Branch, with seven voting members and one non-voting member. The president appoints the seven voting members with the consent of the Senate.

Three of the members of the commission must be federal judges, selected from a list of six recommended by the Judicial Conference of the United States.

Although the commission is set up supposedly in the Judicial Branch of government, the Judicial Branch is only authorized by the Constitution to decide cases and controversies.

"We conclude that the work of the commission is properly characterized as legislative, not judicial," the decision adds. "There are certain legislative powers that Congress cannot constitutionally delegate. . . . Among those powers, we believe, is the power to define and fix the penalties for crimes and to limit the sentencing discretion of federal judges."

The judge's job in sentencing is to exercise discretion, says the ruling. Limiting discretion, as the guidelines do, is a legislative function.

"Hence, the guidelines are in aid of the legislature's role, not the judiciary's."

Jenkins wrote that the judges hope the U.S. Supreme Court will finally decide the issue this fall.